Snyman AJ in the LC reviewed and set aside an award concerning unfair conduct related to ‘benefits’ for secretaries working for judges in the SCA. The secretaries claimed that the Department of Justice deprived them of a special ‘recess benefit’. But the unfair labour practice jurisdiction requires the exercise of a discretion by the employer in order to apply. So in the absence of a discretion to be exercised, there cannot be an unfair labour practice, unless there exists an actual right ex contractu or ex lege. The Department as an employer could not, nor did, exercise any discretion. Leave provisions in the public service apply without exception. The Registrar of the SCA failed to implement the agreed policy. When the ‘recess practice’ was finally abolished in 2013 this did not involve the exercise of any discretion. ‘Circumstances finally caught up with the SCA secretaries, and what happened was always the reality’.
Minister of Justice and Correctional Services v Naude (JR693/15) [2016] ZALCJHB 478 (2 December 2016) per Snyman AJ.
Excerpt
‘Mr Roux, appearing for the first respondent, argued that SCA secretaries do a lot more for their Judges than other secretaries do. These tasks include paying rent, making sure the Judge’s accommodation is in order, organizing and payment of domestic help, buying groceries, organizing laundry and dry cleaning, payment of utility accounts, personal errands, and even assisting the Judge’s family with personal requirements. Whilst this may be so, this cannot change what these secretaries’ actual conditions of employment are. With respect, these are individual arrangements between the Judge, and the secretary allocated to him or her. There is nothing standing in the way of a Judge and his or her secretary coming to such a kind of arrangement, but these arrangements are personal and have nothing to do with conditions of employment. It certainly cannot elevate the secretaries into the realm of the benefits enjoyed by Judges, namely recesses between Court terms. In the end, the Judges are not the employers of the secretaries’. [para 68]
Further excerpts without footnotes
Introduction
[1] This case has its roots firmly in the practices of the High Court in the far past. These practices existed before the consolidation and organization of the public service into a central framework, where conditions of employment of all employees in the public service are expected to be consistently applied and are the subject of organized sector level collective bargaining. In short, what one has in this matter is the remnants of the past finding its way into current affairs.
. . . . .
The relevant background
[7] Before dealing with all the relevant facts, I need to set out how the second applicant became involved in this matter. Initially, and as said, the individual first respondents were all employed by the Department at the time when this matter proceeded to arbitration and the arbitration award was handed down. Since then, however, all employees employed in the area of the public service referred to as the Judiciary (Superior Courts) were transferred to the second applicant [Office of the Chief Justice], by virtue of the provisions of the Superior Courts Act. The second applicant is now the employer of these employees. This would include all the individual first respondents.
[8] The individual first respondents are all Judges’ secretaries employed at the Supreme Court of Appeal (‘the SCA’). I will refer to the individual first respondents in this judgment, for the sake of convenience and ease of reference, as ‘the ‘SCA secretaries’. Each of these SCA secretaries are tasked to service an individual SCA Judge.
[9] As touched on above, this matter has as its origin the long standing past practice, spanning over decades, associated with the terms of the High Courts and the SCA. In between each of the Court terms there is a recess. In the recess, Judges in the SCA are not required to report for duty. A practice had then developed over some 65 years in terms of which the SCA secretaries allocated to each Judge were also not required to report for work in the recess, without having to take leave, unless the Judge concerned decided to work in the recess and instructed the SCA secretary to work as well. It was common cause between all the parties that in the past, this was indeed the practice. I may add that this practice also applied in several of the High Court jurisdictions as well. I will refer to the aforesaid practice in this judgment as ‘the recess practice’. There was never a recess practice in the Constitutional Court, as this Court was newly established, after 1994.
. . . . .
The unfair labour practice
[44] This brings me to the third respondent’s award where it comes to the merits of the matter and the unfair labour practice dispute itself. The point of departure in deciding the review in this regard is to first establish the grounds of review raised by the applicants. Broadly speaking, the applicants’ review grounds are founded on a contention that the third respondent ignored material evidence and then became unduly embroiled in irrelevant evidence, when deciding that the Department has committed an unfair labour practice towards the SCA secretaries in abolishing the recess practice. The applicants have also raised the further review ground that as a matter of law, this continuing recess practice simply could not override the terms and conditions of employment agreed to in the PSCBC, and that the application of the award would raise an inconsistency in the application of terms of conditions of employment in the public service. The applicants have finally contended that the third respondent misconstrued the relevant legal principles, leading to an unreasonable outcome.
[45] I will firstly deal with the evidence actually considered by the third respondent. Regrettably, there is substance in the contention of the applicants that the third respondent completely ignored material evidence. I venture to say this happened because the third respondent was unduly influenced by the calibre of one of the witnesses for the SCA secretaries that testified before him, being a retired SCA Judge, Judge Hefer. The third respondent became, for the want of a better description, star struck by the presence of so a senior Judge as Judge Hefer and fixated on the Judge’s testimony to the exclusion of all else. In fact, and in his reasoning, the third respondent hardly made a reference to any other testimony, relying virtually only on the Judge’s testimony. This is clearly not a rational and reasonable consideration and determination of the evidence before the third respondent as a whole, which is required.
[46] What the third respondent further completely failed to appreciate is that Judge Hefer retired in 2002, and could therefore only in reality testify what had happened in the past under the former dispensation. The third respondent had no regard at all to the testimony relating to the events in 1997, 2008 and 2013 referred to above, the advent of centralized collective bargaining in the PSCBC and the resulting Resolutions, and finally the change in circumstance where it came to public service in the new dispensation. A telling example of this change in circumstance can be gathered from the testimony of Judge Hefer himself to the effect that he had in the past appointed secretaries, which is certainly no longer the case, as secretaries are appointed by and employed by the Department, and not by the Judges they serve. With respect, the views of Judge Hefer were simply not current.
. . . . .
[50] It surely cannot be said that the SCA secretaries have a contractual or ex lege right to be absent from work in the recesses without taking formal leave. The actual contractual and ex lege terms and conditions of employment of the SCA secretaries are determined by their individual contracts of employment and the provisions of the Resolutions adopted under the auspices of the PSCBC by way of collective agreement. None of these provisions provide for leave of absence in the recesses without formal leave, in other words the recess practice.
. . . . .
[59] I accept that where it comes to relying on an unfair labour practice relating to a benefit, it is not necessary for the SCA secretaries to show that they have a right to the benefit ex contractu or ex lege. The concept of a benefit in the case of the unfair labour practice jurisdiction is much broader than that. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] the Court said:
‘In my view, the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled (ex contractu or ex lege, including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment “benefit” in s 186(2)(a)of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.’
[60] Therefore, and where a privilege, advantage or entitlement is bestowed on an employee in terms of a policy or practice at an employer, by way of an exercise of a discretion by the employer, this would resort squarely under the meaning of a ‘benefit’ for the purposes of the unfair labour practice jurisdiction.[2] Where an employee is then deprived of that benefit by way of exercising the very same discretion, this can then be challenged as unfair under the unfair labour practice jurisdiction.
. . . . .
[65] It is in the above context that the third respondent got it completely wrong. He failed to appreciate that for an unfair labour practice to exist, there had to be a discretion exercised, and that discretion simply did not exist. Also, and what the third respondent in effect did was to elevate a past practice abolished more than a decade earlier to a right, just because it existed for so long a period of time in the past, which is simply not competent under the unfair labour practice jurisdiction. From a legal perspective, therefore, the third respondent’s award is unsustainable and at odds with the law.
. . . . .
[71] In summary, it is my view that the third respondent failed to consider material evidence, and in essence relied on what was actually irrelevant evidence. On the evidence, it is clear that the conduct of the Department did not constitute an unfair labour practice. Also, the third respondent misconstrued the applicable legal principles, especially where it comes to what constitutes an unfair labour practice. These failures by the third respondent clearly constitute gross irregularities, satisfying the first leg of the review test. It is then further my view, that in the absence of these irregularities, there is simply no basis on which the award of the third respondent can be sustained as being a reasonable outcome. Considering the proper evidence as a whole, and applying the relevant legal principles, I am satisfied that the outcome arrived at by the third respondent is unreasonable, satisfying the second leg of the review test. The arbitration award of the third respondent thus falls to be reviewed and set aside.